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Friday, June 29, 2012

Mike Lee: There are “signals” in the conservative opinion that Roberts switched his vote

You already knew that, of course, but in case you were thinking that was just me blathering at you, here’s a U.S. senator saying that something smells fishy to him too.

I asked Lee about speculation that the joint dissent filed by Antonin Scalia, Anthony Kennedy and Clarence Thomas and Alito – which argued for invalidating all of Obamacare – was originally drafted as the majority opinion. Among other things, the dissent spends much of the time attacking the government’s arguments, as well as a dissent from Ginsburg, and only passingly refers to the actual majority opinion. This has been seen by some as a strong indication that Roberts may have changed his vote.

“I noticed the same thing,” Lee said. “Although I don’t know exactly what happened within the Court, these are the kinds of signals you tend to see when something like that does happen. It made no sense to me that the dissent referred repeatedly to the ‘Ginsburg dissent’ instead of the ‘Ginsburg concurring opinion,’ for example. And it was written like it was expected to be a majority opinion. And although I don’t know exactly what happened there, that is the sort of thing you tend to see when somebody switches their vote.”

Did Obama’s “intimidation tactics,” to borrow Lee’s phrase from his interview with Philip Klein, in preemptively attacking the Court put enough pressure on Roberts to get him to flip? I don’t really believe that. The One’s gotten ferocious pushback from our side for grumbling about the Court; he’s been conspicuously quiet about it since oral arguments were held on O-Care back in March aside from some half-joking lines at his fundraisers about having to revisit health care in his second term. Some liberals were so worried about him rolling over and playing dead if the Court struck down the law that they felt obliged to beg him publicly to get angry if things didn’t go his way. And of course, poll after poll shows the balance of public opinion on the side of tossing the law in the trash. Even Anthony Kennedy felt comfortable in voting to cashier the whole thing. Yet somehow John Roberts was afraid of The One, whom virtually no one listens to anymore? C’mon.

Orin Kerr wonders if maybe Roberts didn’t change his vote after all:

So it might have happened like this. The Justices voted at conference and there were five votes to uphold the mandate on the tax argument and at least five votes to strike down or modify the medicaid expansion. The first group is Roberts plus the liberals, and the second group is Roberts plus the conservatives. Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself. Roberts doesn’t know how many votes his opinion will get, and he tries to write in a way that might persuade some unlikely votes to join him. Maybe Justice Kennedy will change sides and make the case 6-3, which would avoid the dreaded 5-4 vote. Or maybe he can get some liberal votes to join the section blocking the medicaid expansion…

After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters. The dissenters have a lot [of] issues to cover and very little time in which to say it, and making it a joint effort allows them to pool resources. They divide the pieces with different Justices working on different issues. The result is a 65 page opinion that is a bit of a patchwork, with different parts by different Justices having different lengths and some portions not really necessary (like severability) included. Some parts may have been drafted before the Roberts opinion circulated, which might explain why parts are duplicative of the Roberts opinion.

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